Proposals

It is proposed that the Immigration Bill (the Bill) allow the Minister to certify "Immigration Instructions", incorporating "Residence Instructions" and "Temporary Entry Instructions", that contain the fundamental rules relating to visa applicants and applications for travel to, entry and stay in New Zealand.

It is proposed that the Minister be able to certify where discretion can be exercised in both Residence and Temporary Entry Instructions.

It is proposed that the Bill replicate the provisions in the 1987 Act that require residence decisions to be consistent with Residence Instructions except where the Minister has certified that discretion can be exercised.

It is proposed that the Bill require Immigration Instructions to be published by the Department of Labour (the Department) except where the Instructions can be withheld in accordance with the Official Information Act 1982 (the OIA).

Status quo

The proposals above replicate the 1987 Act except that the terminology will change:

• GIP will be called "Immigration Instructions"
• GRP will be called "Residence Instructions", and
• temporary entry policy will be called "Temporary Entry Instructions".

Discussion paper and submissions

This proposal to change terminology was not included in the discussion paper. It is intended help create more understandable legislation. The submissions highlighted confusion over the use of "policy" in the 1987 Act.

Setting Immigration Instructions outside the statute would support the Bill as framework legislation. Approximately 80 percent of 94 submitters agreed that the Bill should be framework legislation.

Comment

These proposals support flexibility and responsiveness by continuing to enable specific and enforceable rules to be set outside the statute. For example, the Skilled Migrant Category, in Residence Instructions, would continue to contain the rules for skilled residence applications, while the rules for student visa applications would be in Temporary Entry Instructions. Publishing the Instructions ensures transparency and accessibility.

Proposals

Consistent with the visa framework proposed in Chapter Two: Visas, it is proposed that Immigration Instructions for visa applicants be made, among other things, regarding:

1. character
2. health
3. sponsorship, and
4. bonds.

It is proposed that the Bill include the ability to decline an application from a non-citizen of 17 years of age or younger who is not married or in a civil union, if appropriate, where it is reasonably believed the consent of a parent or guardian is withheld.

Status quo

The 1987 Act contains provisions that enable GIP and GRP to establish policies relating to visa applicants, including the ability to decline an application from a non-citizen of 17 years or younger.[5]

Discussion paper and submissions

The discussion paper asked a number of questions in relation to, primarily, health and sponsorship which are discussed in the sections addressing these topics below.

Comment

These proposals support the concept of framework legislation and seek to ensure that the Department can facilitate the travel, entry and stay of the non-citizens New Zealand wants and needs.

As well as the legislative exclusion grounds proposed in Chapter One: Core provisions, character policy can be developed as an entry requirement applied to all visas or as specific criteria for a single visa type to support the intent of the visa. This maintains the status quo.

Proposal

It is not proposed that health become "exclusion" criteria as proposed in the discussion paper but that the current practice of setting health criteria outside the legislation is retained, along with provisions for health waivers.

Status quo

Health is a criterion on which decisions are made under GIP and GRP, but it is not referred to specifically in the legislation. Waivers can be made in a range of circumstances where health criteria cannot be met.

Discussion paper and submissions

The proposal that immigration legislation include health "exclusion" criteria received 121 submissions. Most responded negatively with comments generally reflecting the Human Rights Commission's submission:

"Although the proposal contemplates exceptions to the exclusion rule, there is no guarantee that a person with a disability who meets all the other requirements for entry will be permitted to enter the country. This may constitute indirect discrimination on the ground of disability and contravene both Art.2 ICCPR and s.19 NZBORA".

A number of submitters commented that a non-citizen with a medical condition or disability may be able to make a significant contribution outweighing any medical costs. Submitters also commented that it should not be assumed that a person with disabilities is unwell. For example, the Disabled Persons' Assembly considered that the proposal improperly "medicalised" disability. Other submitters, such as Auckland Refugees as Survivors Centre, considered that any inclusion of health exclusion criteria in legislation must be accompanied by the ability to waive the criteria.

The New Zealand Association of Migration and Investment (NZAMI) noted that health factors would be subject to more frequent change than character. The proposal above acknowledges this, and addresses concerns expressed in the submissions by not establishing health as "exclusion" criteria.

Comment

Specifically indicating in the legislation that health is criteria on which Immigration Instructions can be made signals its importance. Not including it as "exclusion" criteria acknowledges that health is seldom a matter of individual culpability. Under the proposal, the provision for health waivers would be retained in Instructions as per the status quo.

Proposals

It is proposed that the Bill enable temporary entry and residence applicants to be required to have a sponsor.

It is proposed that the Bill continues to enable natural persons to be sponsors and that the minimum criteria natural persons are required to satisfy include that they:

1. are a New Zealand citizen or permanent resident
2. are acceptable to the Minister or an officer, and
3. meet any other criteria including that required by:
4. the Minister, or
5. Immigration Instructions.

It is proposed that the Bill enable organisations that are legal entities to be sponsors and that the minimum criteria include that the organisation:

1. is registered in New Zealand as a:
2. company
3. incorporated society, or
4. charitable trust

OR

1. is a government agency or Crown Entity.

In addition to 202 (a) and (b) above, it is proposed that an organisation must also:

1. nominate an authorised contact
2. be acceptable to the Minister or an officer, and
3. meet any other criteria including that required by:
4. the Minister, or
5. Immigration Instructions.

It is proposed that the Bill allow a sponsor to be made liable for any costs incurred as specified by the conditions of their sponsorship, and for the repayment of those costs except where waived.

It is proposed that costs incurred include those incurred by the Crown, along with other publicly funded service providers.

Status quo

The 1987 Act enables temporary entry applicants to be required to have sponsors, while GRP enables residence applicants to be required to have sponsors. Sponsors are restricted to natural persons who must be acceptable to the Minister. The 1987 Act specifies that sponsors can be made liable for "costs incurred by the Crown". Referring to the Crown prevents certain publicly funded service providers from recovering costs if they are not legally "the Crown" but receive Crown funding.

Discussion paper and submissions

Submitters generally recognised that sponsorship was a valuable tool. Seventy percent of 92 submitters supported stronger legislative provisions for sponsorship. There was also support for organisations to be sponsors, for example, from Business New Zealand (Business NZ). Approximately 60 percent of submitters supported specific immigration consequences for failing to meet sponsor obligations.

The NZAMI noted concern over the potential burden that obligations may place on sponsors. This was also a concern for Pacific and refugee communities.

Comment

The proposals would help give sponsorship greater effect as a mechanism to reduce the risk of a non-citizen's failure to meet visa conditions. Ensuring that sponsors can be made liable for the costs they agreed to cover should reduce the cost of non-citizens accessing to publicly funded services they are not entitled to.

The specific conditions of sponsorship would be incorporated in Immigration Instructions and may include that a sponsor support an applicant's settlement, accept responsibility for their maintenance, or liability for the cost of their failure to meet their visa conditions. Maintenance may have different meanings, for example, health care or housing.

Meeting the requirement to be "acceptable to the Minister or a designated officer" could be given different meanings in Immigration Instructions. Criteria may be set in Instructions that sponsors would be required to meet. Not meeting the criteria for sponsorship would have the same effect as banning a sponsor who fails to comply with their obligations.

Proposals

It is proposed that the Bill continue to enable bonds to be requested from temporary entry and residence applicants.

It is proposed that Residence or Temporary Entry Instructions establish the level of bond, and what expenses it may cover including:

1. deportation expenses incurred by the Department
2. un-entitled access to publicly funded services, and
3. any other expense specified.

Status quo

The 1987 Act enables bonds to be requested from applicants for various purposes, at a level determined in regulations for temporary entry applicants, and in GRP for residence applicants.

Discussion paper and submissions

As with sponsorship, some submitters opposed the use of bonds, commenting that they may be significant burden. Concern was also expressed that use of bonds would become a default in some visa categories.

Comment

As with sponsorship, the proposals would help give bonds greater effect as a mechanism to reduce the risk of a non-citizen's failure to meet visa conditions enabling, for example, the government to recover the cost of a non-citizen's deportation if they overstay their visa. These proposals do does not mean bonds or sponsorship will be used more frequently than now.

Proposals

It is proposed that the Bill include the 1987 Act's fundamental requirements relating to applications, including requirements to:

1. apply in the prescribed format
2. use the approved forms[6]
3. pay the required fee
4. provide all the requested information
5. disclose all relevant facts, and
6. advise of any material change in circumstances.

It is proposed that the provisions in the 1987 Act for Expressions of Interest in residence applications and Invitations to Apply for residence be included in the Bill without limiting their use to residence applications.

It is proposed that the Bill continue to include provisions for allowing applications to be lapsed (deemed as no longer current).

Status quo

The 1987 Act contains provisions that allow policy to be made relating to applications. Expressions of Interest and Invitations to Apply are used in residence visa (and permit) application processes. These processes cannot currently be used for temporary entry applications.

The 1987 Act contains provisions that guide when a visa or permit application can be lapsed.

Discussion paper and submissions

These proposals were not included in the discussion paper as they essentially carry over the status quo and are machinery to the effective and efficient management of the immigration system.

Comment

The proposals allowing rules to be made relating to visa applications, including using Expressions of Interest and Invitations to Apply, will enable the Department to make informed decisions on whether to grant a visa or permit. The proposals will also enable the Department to manage demand and prioritise the entry of the migrants that New Zealand wants and needs.

While is it desirable that a decision is made on each application the Department receives, provisions for allowing them to be lapsed are a useful tool where special circumstances require a significant shift in the process.

Proposals

It is proposed that the Bill include the current powers of the Minister, updated to reflect proposals in this review, to:

1. certify Immigration Instructions
2. grant visas (including to non-citizens unlawfully in New Zealand)
3. make special directions
4. cancel or suspend liability for deportation, and
5. delegate powers.

Status quo

In the 1987 Act the Minister has the power to:

1. certify GIP and GRP
2. grant visas and permits (including to non-citizens unlawfully in New Zealand under section 35A of the 1987 Act)
3. make special directions
4. order deportation
5. approve application forms and visa formats, and
6. delegate powers.

In the 1987 Act, the Minister is unable to delegate certain powers including the ability to certify GIP and GRP, to make exceptions to residence, and to order deportations.

Discussion paper and submissions

The discussion paper proposed allowing the power to make exceptions to residence policy to be delegable. The proposal was supported by approximately two-thirds of 107 submitters including the Auckland City Council and the Office of the Ombudsmen. There were many comments that the Minister should retain some power to intervene, which is proposed.

NZAMI expressed concern that exceptions made by the Department may be perceived as being motivated by bias or discrimination. Their concern echoed a risk noted in the discussion paper that decision-makers may come under pressure to use the discretionary power where it may not necessarily be warranted.

Comment

The ability for the Minister to grant visas (including to non-citizens unlawfully in New Zealand under section 35A of the 1987 Act, and as an exception to GRP) is considered important in creating a responsive and flexible immigration system. The proposals above retain all the current powers of the Minister except the power to approve application forms and visa formats which is generally an administrative matter.

These proposals would enable the Minister to delegate the power to make positive exceptions to Residence Instructions. The use of the power by delegated officers would be discretionary. The proposal would not limit any appeal rights associated with a declined application. Applicants would continue to be able to appeal against a decline as provided for in Chapter Six: Review and appeal. As a part of that appeal, the Immigration and Protection Tribunal could recommend that the Minister approve the application as an exception to Residence Instructions.

In order to address any risk that the power would be used inappropriately, the Minister may choose to limit its delegation to particular, senior officers with an established understanding of the government's immigration priorities. This would address concerns expressed in submissions. Other delegations would also be limited to appropriate and suitable officers with proper training and/or experience in accordance with clear policies and procedures.

To further support the effective delegation of ministerial powers, there would be an administrative presumption that an applicant is required to submit an application and undertake an appeal before seeking ministerial intervention. This would ensure fairness and equity in the application process.

Proposals

It is proposed that the powers for officers appointed to undertake immigration functions, including protection determination officers, continue to be provided for in the legislation.

It is proposed that in the Bill, New Zealand Police officers retain their current powers in the 1987 Act.

It is proposed that the Bill require the chief executive of the Department to designate an officer or a class of officers to perform specified statutory functions subject to any limits or conditions.

It is proposed that officers can continue to be delegated ministerial immigration decision-making powers.

It is proposed that the Bill explicitly enable designations to be withdrawn by the chief executive of the Department and delegations to be withdrawn by the Minister, and that designations and delegations be automatically revoked when an officer leaves the relevant position.

Status quo

The 1987 Act contains the powers of immigration and visa officers and refugee status officers. It contains some powers granted to police and customs officers. Officers can be delegated powers to exercise certain ministerial immigration decision-making functions.

Departmental officers can use their statutory powers after they are designated in their role, individually or by class, by the chief executive of the Department. Police and customs officers gain immigration powers by virtue of their appointment.

Discussion paper and submissions

Public submissions highlighted the importance of the ability to control who exercises powers under immigration legislation. They also highlighted the importance of officers having experience, or training to undertake their role.

The proposal to change the mechanics of designating statutory powers to officers was not in the discussion paper. It was developed in response to submissions recommending greater control over who uses powers, and in what circumstances.

Comment

These proposals will enable the use of the statutory powers proposed in Chapter Nine: Compliance and enforcement and Chapter Ten: Monitoring and detention to be limited to Police and to officers (who may also be customs officers) who have received the training that may be required. This will mean that the chief executive can assess the thoroughness of any training before designating powers to officers. The chief executive will also be able to maintain a transparent picture of which officers have designated powers.

Essentially, the change means that no powers will be automatically granted to officers (except Police) by virtue of their appointment to a role, be they departmental officers or customs officers. The chief executive will have greater ability to control who makes immigration decisions, protection determinations, and who exercises entry, search and detention functions.

It is intended that these provisions will continue to allow for overseas agents, police and customs officers to be designated powers, either individually or by class. For example, it is intended that customs officers continue in their current immigration role at the border.

Proposals

It is proposed that the Bill enable the chief executive to:

1. approve immigration application forms, and/or
2. approve visa formats.

It is proposed that the provisions in the 1987 Act that allow the chief executive to give instructions on the order and manner of processing applications are included in the Bill.

Status quo

The powers to approve forms and visa formats are currently delegable powers of the Minister. The power of the chief executive to give instructions on the order and manner of processing applications is the status quo.

Discussion paper and submissions

These proposals were not in the discussion paper as they are machinery.

Comment

Granting the power to approve forms and visa formats to the chief executive would mean application forms could be easily and readily updated, corrected and translated, and visa formats approved consistent with Immigration Instructions.

The power to give instructions on the order and manner of processing applications is a useful mechanism for the chief executive to contribute to managing the immigration system.

Potentially prejudicial information and reasons for decisions

Proposals

It is proposed that the administrative practice of providing PPI and reasons for decisions to non-citizens engaged in the immigration system continues as per the 1987 Act, the OIA, the Privacy Act 1993, and the principles of administrative law.

It is proposed that in practice, PPI and reasons are given to all applicants, with some exceptions including when:

1. an applicant is in New Zealand unlawfully
2. the Department is making, serving or cancelling a removal order, or
3. the Minister decides a special direction request.

Status quo

The status quo mirrors the proposal above.

Discussion paper and submission

The discussion paper asked when PPI and reasons for decisions should be given to applicants: onshore only, or to applicants who are on and offshore. The question generated considerable discussion in the Department, between agencies, in the public meetings, and submissions. Most of the discussion supported PPI and reasons being given to all applicants. For example, 75 percent of 55 organisations and almost 90 percent of 52 individual submitters including the NZAMI, NZLS and Human Rights Commission supported the status quo.

Submitters noted that withholding PPI and reasons would work against a fair immigration system and hinder effective decision-making.

Comment

The status quo was found to be appropriate and was supported across the Department, between agencies, in the public meetings, and submissions.

If PPI is provided to a non-citizen, an appropriate decision on their application or immigration status can be made, considering all the relevant information. Immigration decision-makers felt that the PPI process was an important aspect of making a decision on an application and that quality decisions would be hindered by withholding PPI from offshore applicants.

Immigration decision-makers also considered that providing reasons for decisions would ensure that all applicants have a clear understanding of the decision made on their application. Applicants may use the reasons to make an appropriate judgement on making further applications in the future.

Proposals

It is proposed that the Bill enable electronic decision-making, with appropriate safeguards such as the ability to reverse decisions made in administrative error.

It is proposed that the implementation of electronic decision-making would be subject to further Cabinet consideration.

Status quo

In administering the immigration system, the Department uses available and affordable technology to support the application process but final decisions must be made by officers. For example, student permit renewal applications are lodged and sorted electronically.

Discussion document and submissions

Approximately 75 percent of 60 organisations, such as the NZAMI and Business NZ, and just over half the 47 individual submitters supported the proposal to enable electronic decision-making. They commented that New Zealand needs to move with the times and make use of technology.

Organisations that supported the proposal included the Board of Airline Representatives New Zealand. Business NZ commented that the proposal seemed sensible and the New Zealand Law Society noted that it would be an appropriate use of technology.

The main concerns expressed in the submissions were around ensuring that electronic decisions are limited to low-risk approval decisions that do not require an individual judgement to be made. Electronic decision-making was acknowledged to be distinct from third party decision-making (discussed below) as the Department would control electronic decision-making processes and the computer systems that enabled them to occur.

Comment

Implementation of electronic decision-making would include a comprehensive risk analysis to ensure that robust and appropriate individual decisions can be made. It would also ensure that appropriate safeguards, such as the ability to reverse decisions made in administrative error, were transparent. Along with any specific provisions drafted to safeguard electronic decisions, powers to reverse decisions, and cancel visas, proposed for example in Chapter Two: Visas and Chapter Five: Deportation would also provide safeguards.

The key benefits of electronic decision-making in a global immigration market would be to enable New Zealand to make efficient and effective decisions and retain a competitive edge. It would also enable Departmental resources to be allocated with a focus on managing risk in complex applications or to deal with high demand.

Australia allows for automated decision-making and has appropriate safeguards in legislation that allow an incorrect decision to be overturned by the Minister. This has enabled the development of an Electronic Travel Authority where a computer can make a number of visa decisions. Canada plans to use electronic decision-making in the future.

Proposal

It is proposed that the Bill should not enable third party decision-making, but that the Department should continue to use third parties to assist in some administrative and assessment functions in the immigration system.

Status quo

The Department facilitates third party relationships that contribute positively to the effective management of the immigration system and to the decision-making process, but third parties do not make final immigration decisions.

Discussion paper and submissions

The discussion paper asked if provisions for third party decision-making should be incorporated in the Bill. There was a mixed response. Organisations were evenly split with 45 percent supporting and opposing the proposal. Business and employer representatives, such as Education New Zealand and Business NZ, expressed strong support for the proposal while other organisations and individuals generally withheld their support. The proposal was opposed by the Council of Trade Unions and NZAMI.

Comment

The sovereign right of the government to control the border and make immigration decisions should not be outsourced to third parties as the immigration system supports the multi-faceted priorities of government in a unique and often complex manner. The decision not to propose third party decision-making acknowledges the real risk that third parties could not make decisions giving precedence to government priorities and national interest, rather than their own.

Is not intended that the Bill limit the use of third parties in the effective management of the immigration system. The status quo will continue in this regard. The Department will continue to facilitate third party relationships that can contribute positively to the effective management of the immigration system.